Monday 19 March 2012

COMMENTARY: Feb-March 2012


High Court Judges
keep Kenyans guessing
 
The year 2012 is a great  one  which will defi­nitely change our gov­er­nance sys­tems in Kenya, but I am a worried man, very worried indeed when our learned judges of High Court failed to demonstrate their pa­trio­tism and in­de­pen­dence of judiciary as entrenched in our Con­sti­tution of 2010.

One would wonder why I’ve to pen down my disappointment with what I describe as vague High Court ruling on the first election date under our new order (constitution) The Panel of three high court judges:- Justices Isaac Lenaola, David Majanja and Mumbi Ngugi  as law scholar, one professor Makau Mutua quoted acted like a cowardly Kanu-era court. Their interpretation of law was poorer than Wanjikus / Mwikalis or Atieno’s, period.
Why do I accuse the three judges of law .Allow me to get down to the basics .First we need to identify and confirm that there was a poor draftsmanship at the Committee of Experts  ( CoE ) under the chairmanship of Mr Nzamba Kitonga, a Senior Coun­sel among the Kenyan 5 not the infamous ‘‘ Ocampo 6’’ ( the rest being  Dr Willy Mutunga, Paul K Muite, Gibson Kamau Kuria and Mutula Kilonzo- a new con­vert from illiberal Kanu re­gime)
The COE only failed to specify the first election date but instead gave us  many provisions starting with 2nd Tuesday of every August of the fifty year but again added other transitional  clauses like section 12 of the sixth schedule which temporarily constitutionalises  the National Accord and the offices of the 2 principals thus giving President Kibaki in consultation  with the Prime Minister this one last time so as to pave way for the first general elections to be conducted this year either in August or December provided, however, the National Assem­bly is dissolved 60 days prior to the elections
    That fact of mix-ups at drafts­manship is what gave room for our debate as to when we  should vote in a new team under new order. By design the Parliament delayed the legislation and formation of Independent Electoral and Boundaries Commission  ( IEBC ) sub­se­quently  pushing the August date, To perfect  this scheme our bloated cabinet of 44 plus  members met at State House, ate massively  and concluded to fix the date on third week of December 2012.
    How exactly did our learned judges fail us? Without beating about the bush, let me just remind the areas of our concern .One, after the election date became open to debate, some fellows from Civil Society petitioned  the Su­preme Court of Kenya to set the election date while  Kilome MP John Harun Mwau filled a constitutional case at the High Court  challenging the Supreme Court from setting the date of the first election. The president of the supreme court who is also the Chief Justice  concurred with Mwau’s submissions  that it lies with the mandate of High Court rather than the Supreme Court, to interpret the con­sti­tution.
Then the   C.J directed all the con­sti­tu­tional  applications be con­soli­dated together,  heard  and de­ter­mined  at  the High Court so as to give avenue for appeal should there be need.
I agree with the process as intended but the problem with our judges  of law is that they lacked substance, remember in law both form and substance are of equal value and one cannot stand without the other, to elaborate this, the High Court bench behaved  like the defunct  Electoral Commission of Kenya Chairman Mr Samuel  Kivuitu   who had all the features of an undecided  referee who can ask  the fans or coaches if a score is really  a score instead of con­firming .
How did this happen ? Instead of High Court  deciding on either August as per the letter  or December as per the spirit of politicians / cabinet it went further and proposed March 15th  2013. About 3 decades ago, I was a std 4 pupil at Musaalani primary in Machakos County when our  Head teacher – cum-CRE teacher gave us a biblical quiz which had 2 choices of either  John or  Peter. One would have been  condemned by Mr.Michael Ngololo if he / she would come up  with a third choice of Paul. So our judges absconded their central role of arbiter and instead of determining for us ,they came up with ‘‘ weird’’ proposed of expiry of 10th parliament by January 15th  2013 hence elections be conducted after 60 day ( March 15th ) .
Alternatively, the judges seemed to sugest, that Kenyans persuade Kibaki and  Raila to agree in writing to dissolve parliament and conduct elections after 60 days. This does not make  sense  but  constitutes a legal baloney and hogwash.
 It defeats both logic and common sense with having law courts which push the ball back  to the political class which lacks jurisdiction, competence and capacity to handle such weighty issue which is reserved for the law courts.  
    My prayer is that the Court of Appeal to reverse without delay this needless legal mumbo-jumbo which can hold the nation hostage, causing serious constitutional  crisis.
 And by the way, what is the meaning of transitional management   in regard to sixth schedule. My reading and average understanding is that sixth schedule is a bridge between the old and new constitutional  dispensations  to allow a seamless transition but not to extend  the status quo.

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